Opinion
No. 1:02-cv-142
April 9, 2003
MEMORANDUM
Plaintiff Sammy R. Pearison ("Pearison") brings this action against defendant Pinkerton's, Inc. ("Pinkerton's") claiming race discrimination in employment. It is not entirely clear from the pro se complaint whether this claim is being brought under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e-5(g), or the Tennessee Human Rights Act ("THRA"), TENN. CODE ANN. §§ 4-21-101 — 4-21-401, or both. The Court liberally construes the complaint as asserting race discrimination in employment claims under both Title VII and THRA. This is inferred from the fact that Pearison filed his administrative charge of race discrimination with the Tennessee Human Rights Commission (THRC").
As the Court states in its memorandum opinion rendered on November 4, 2002 [Court File No. 30], the only causes of action that remain before the Court for adjudication are Pearison's race discrimination claims brought against defendant Pinkerton's, Inc. under Title VII and THRA. All other claims have been dismissed.
There are two motions before the Court.
I. Plaintiff's Motion To Compel Discovery [Court File No. 32]
Pearison requests a show cause hearing. [Court File No. 32]. The Court treats this request as a motion pursuant to FED. R. CIV. P. 37(a)(2)(B) to compel discovery. Pearison contends that Pinkerton's has not timely answered interrogatories. The motion lacks merit and it will be DENIED.
Rule 37(a)(2)(B) provides in part: "The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." Pearison's motion to compel discovery is deficient in that it does not contain the necessary certification. For this reason alone, the motion can be denied.
Furthermore, Pearison has not met his burden of showing that Pinkerton's has failed to timely answer interrogatories propounded to it. According to the documents submitted by Pearison, there are two sets of interrogatories. On or about September 24, 2002, Pearison sent his first set of interrogatories to defendant Guy D. Thomas ("Thomas"). Pearison now complains that Pinkerton's failed to answer these interrogatories. The only defendant remaining in the case at this juncture is Pinkerton's, and it is under no obligation to answer interrogatories addressed to Thomas individually.
The Court will not order Pinkerton's to answer interrogatories that were propounded only to Thomas. Thomas is not a party this suit at this time. Pearison never effected service of process upon Thomas. On November 4, 2002, the Court dismissed the complaint against Thomas under FED. R. CIV. P. 4(m) because Pearison failed to timely effect service of process. [Court File No. 30]. The Court cannot compel Thomas to answer interrogatories when he is not a party to this action and has never been properly served with process under Rule 4. Thomas was not legally obligated to answer the interrogatories in the absence of being served with process.
Pearison also submits a copy of another document captioned "PLAINTIFF'S SECOND SET OF INTERROGATORIES." The document is not signed by Pearison as required by FED. R. CIV. P. 11(a). It appears this was the only set of interrogatories that Pearison actually propounded to Pinkerton's. The document purports to show that Pearison prepared the second set of interrogatories on December 27, 2002. The date is significant because Pearison filed his motion to compel discovery [Court File No. 32] three days later on December 30, 2002. In other words, Pearison did not allow Pinkerton's sufficient time to answer the second set of interrogatories before he filed the motion to compel discovery.
With regard to the second set of interrogatories dated December 27, 2002, Pearison's motion to compel discovery is premature. FED. R. CIV. P. 33(b)(3) provides that a party ordinarily has thirty days to answer interrogatories. Pearison filed his motion to compel discovery long before the thirty-day period elapsed.
Accordingly, Pearison's motion to compel discovery will be DENIED.
II. Pinkerton's Motion To Dismiss [Court File No. 28]
On October 11, 2002, Pinkerton's made a motion pursuant to FED. R. CIV. P. 12(b)(1) to dismiss the Title VII claim on the ground of lack of subject matter jurisdiction. [Court File No. 28]. Pinkerton's argues this Court lacks subject matter jurisdiction because Pearison did not file his complaint in this federal district court within ninety-days of his constructive receipt of the right-to-sue ("RTS") notice mailed to him by the Equal Employment Opportunity Commission ("EEOC") on October 31, 2001, as required by 42 U.S.C. § 2000e-5(f)(1).
Pearison opposes the defendant's motion to dismiss. Pearison contends he did not actually receive the RTS notice because the EEOC mailed it to his former residence at 2624 Glenwood Parkway Apt. 3, Chattanooga, TN 37404.
The Court reserved ruling on Pinkerton's motion so the parties could submit proof and supplement the record with a more complete explanation of the relevant facts. The Court directed the parties to clarify: (1) the date when actually Pearison received the RTS letter from the EEOC; (2) the date when Pearison moved away from 2624 Glenwood Parkway Apt. 3, Chattanooga, TN 37404; (3) what specific steps, if any, that Pearison may have taken to provide the EEOC and/or the THRC with his correct mailing address; and (4) whether the EEOC records show that the RTS letter sent to Pearison was ever returned to the EEOC by the United States Postal Service as undeliverable. [Court File No. 30].
Pinkerton's has filed a supplemental brief in support of its motion to dismiss. [Court File No. 42]. Pinkerton's states that since the Court intends to rely on documents and proof outside the pleadings, it requests that the Court treat Pinkerton's motion to dismiss as one for summary judgment. FED. R. CIV. P. 12(b). Pearison has not objected to this request. The Court agrees with Pinkerton's that the motion should be converted into one for summary judgment pursuant to FED. R. CIV. P. 12(b) and 56. The request will be GRANTED.
After reviewing the record as supplemented by the parties, the Court concludes that Pinkerton's summary judgment motion will be GRANTED. There are no genuine issues of material fact in dispute and Pinkerton's is entitled to summary judgment as a matter of law. Pearison's claims of race discrimination in employment brought under Title VII and THRA will be DISMISSED WITH PREJUDICE. The Title VII claim is time-barred because Pearison did not notify the EEOC of his change of address and he did not file suit in federal district court within ninety days after his constructive receipt of the RTS notice from the EEOC as required by 42 U.S.C. § 2000e-5(f)(1). The THRA claim is time-barred by the THRA statute of limitations.
A. Standard Of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
B. Facts
The Court has reviewed the record in the light most favorable to Pearison and makes the following findings of fact. Pearison filed his administrative complaint with the THRC on February 5, 1999. On the complaint form, he listed his address as 2624 Glenwood Parkway Apt. 3, Chattanooga, Tennessee 37404. On January 1, 2000, Pearison moved his residence to 2008 Cooley Street, Chattanooga, Tennessee. Pearison went to the THRC office in Chattanooga in person on or about January 5, 2000, and notified the THRC of his change of address. He also filled out a change of address form for the United States Postal Service so that mail would be forwarded to his new address. There is no proof that Pearison ever notified the EEOC of his change of address. The address of record for Pearison at the EEOC continued to be 2624 Glenwood Parkway Apt. 3, Chattanooga, Tennessee 37404.
Pearison contacted the THRC and insisted that the administrative process be terminated. Pearison wanted the EEOC to issue a RTS notice so he could file suit in federal district court. The THRC complied with Pearison's demand and terminated the administrative proceedings under THRA.
On October 31, 2001, the EEOC mailed the RTS notice to Pearison at his address of record, namely 2624 Glenwood Parkway Apt. 3, Chattanooga, Tennessee 37404. The letter was returned to the EEOC as undeliverable. The United States Postal Service did not forward the RTS notice to Pearison at 2008 Cooley Street, Chattanooga, Tennessee, because his change of address instruction for forwarding his mail had expired. Pearison did not actually receive the RTS notice from the EEOC. Pearison ultimately filed this suit in federal district court on May 13, 2002.
C. THRA Claim
The THRA claim must be dismissed because it is time-barred by the THRA one-year statute of limitations. THRA provides two ways to pursue a complaint of race discrimination in employment. The complainant (here Pearison) is required to elect between these two avenues of relief.
First, he may file an administrative complaint with the THRC and exhaust his administrative remedies. TENN. CODE ANN. §§ 4-21-302 — 4-21-306. If the THRC fails to schedule a hearing or issue an order within 180 days after the complaint is filed, the complainant may file a petition for relief in Tennessee chancery court or circuit court. TENN. CODE ANN. § 4-21-307(c). If the complainant pursues the administrative complaint through to a final order or decision of the THRC, the complainant may obtain judicial review of an unfavorable or adverse THRC decision by filing a petition in either Tennessee chancery court or circuit court pursuant to TENN. CODE ANN. § 4-21-307(a) and (b).
In the alternative, the second avenue of relief is to completely bypass the administrative process and the THRC by directly filing suit in Tennessee chancery court or circuit court pursuant to TENN. CODE ANN. § 4-21-311 within one year after the alleged discriminatory practice ceases. Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1483-85 (6th Cir. 1989); Burnett v. Tyco Corp., 932 F. Supp. 1039, 1043-44 (W.D.Tenn. 1996); Easter v. Martin Marietta Energy Systems, Inc., 823 F. Supp. 489, 496 (E.D.Tenn. 1991); Weber v. Moses, 938 S.W.2d 387, 389-90 (Tenn. 1996); Bennett v. Steiner-Liff Iron and Metal, 826 S.W.2d 119 (Tenn. 1992). TENN. CODE ANN. § 4-21-311(d) provides a one-year statute of limitations on filing THRA claims directly in court.
Pearison chose to pursue the administrative avenue of relief by filing an administrative complaint with the THRC. Pearison did not see the administrative process through to a final order or decision by the THRC. He did not exhaust his administrative remedies under THRA. Instead, Pearison terminated the THRC administrative process and demanded a RTS notice letter from the EEOC which created a statute of limitations problem under THRA.
Claims brought pursuant to THRA are subject to a one-year limitations period provided in TENN. CODE ANN. § 4-21-311(d). Wade v. Knoxville Utilities Bd., 259 F.3d 452, 464 (6th Cir. 2001); Weber, 938 S.W.2d at 389-90. The THRA's one-year limitations period for bringing a direct action in court is not tolled while any administrative charges are pending with the THRC and the EEOC. Puckett, 889 F.2d at 1485-86; Burnett, 932 F. Supp. at 1044; Easter, 823 F. Supp. at 496; Bennett, 826 S.W.2d at 121. In applying the statute of limitations to the instant suit, it is immaterial whether Pearison had an administrative charge pending with the THRC and the EEOC. The statute of limitations continued to run from the date the THRA cause of action accrued despite the administrative proceedings with the THRC and EEOC.
Pearison's THRA cause of action accrued, at the latest, on September 30, 1998. Pearison had one year from September 30, 1998, within which to file his THRA cause of action directly in court but he failed to do so. Pearison filed suit in this Court on May 13, 2002, long after the statute of limitations had run on his THRA claim. Consequently, his THRA claim is time-barred by the statute of limitations.
D. Title VII Claim
Title VII requires Pearison to file his Title VII cause of action in court within ninety days after his receipt of the RTS notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1). Pinkerton's argues the Title VII claim should be dismissed pursuant to FED. R. CIV. P. 12(b)(1) on the ground of lack of subject matter jurisdiction since Pearison did not file suit in this Court within the ninety-day time limit. Pinkerton's jurisdictional argument fails. This Court does not lack subject matter. Pearison's failure to comply with the ninety-day time limit in § 2000e-5(f)(1) does not deprive the Court of subject matter jurisdiction over the Title VII claim.
The Sixth Circuit holds that the ninety-day time limit for filing suit provided 42 U.S.C. § 2000e-5(f)(1) is not jurisdictional in nature, but rather is a timing requirement similar to a statute of limitations. It is subject to waiver, estoppel, and equitable tolling. Floyd v. Tennessee Office of Criminal Justice Programs Finance and Administration, 2003 WL 247105 (6th Cir. Feb.3, 2002); Wade, 259 F.3d at 461; Hopkins v. United Parcel Service, 221 F.3d 1334 (Table, text at 2000 WL 923458, **4 (6th Cir. June 29, 2000)); Brown v. Hyperion Seating Corp., 194 F.3d 1311 (Table, text at 1999 WL 801591, **2 (6th Cir. Sept. 27, 1999)); Truitt v. County of Wayne, 148 F.3d 644, 646-48 (6th Cir. 1998). The Court cannot dismiss the Title VII claim for lack of subject matter jurisdiction. To the extent Pinkerton's moves to dismiss Pearison's Title VII claim under FED. R. CIV. P. 12(b)(1) on the ground of lack of subject matter jurisdiction, the motion is DENIED.
Pinkerton's is entitled to summary judgment to dismiss the Title VII claim but for a different reason. Summary judgment is appropriate because the Title VII claim is time-barred by 42 U.S.C. § 2000e-5(f)(1). See Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552 (6th Cir. 2000) (District court's grant of summary judgment dismissing Title VII claim for failure to file suit within ninety-day time limit as required by 42 U.S.C. § 2000e-5(f)(1) affirmed on appeal). Pinkerton's raises this argument in its supplemental brief. [Court File No. 42].
The federal courts strictly enforce the ninety-day time limit for filing suit under 42 U.S.C. § 2000e-5(f)(1). Graham-Humphreys, 209 F.3d at 557. The procedural requirements established by Congress for gaining access to the federal courts in Title VII cases "are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Center v. Brown, 466 U.S. 147, (1984) (per curiam); see also Hopkins, 2000 WL 923458, at **4; Graham-Humphreys, 209 F.3d at 557. Pearison contends he did not actually receive the RTS notice from the EEOC because the EEOC mailed it to his former address at 2624 Glenwood Parkway Apt. 3, Chattanooga, Tennessee.
Pearison alleges he gave his change of address to the THRC in January 2000. Even if the Court accepts this allegation as being true, there is no proof showing that Pearison also notified the EEOC of his change of address. When Pearison made a demand to the THRC that the EEOC issue the RTS notice, the EEOC mailed the RTS notice on October 31, 2001, to the last known address it had for Pearison, namely 2624 Glenwood Parkway Apt. 3, Chattanooga, Tennessee 37404. This was the record address the EEOC had for Pearison. The RTS notice was ultimately returned to the EEOC by the United States Postal Service marked "UNDELIVERABLE AS ADDRESSED."
Based on these facts taken in the light most favorable to Pearison, his Title VII claim is time-barred. It is not necessary that Pearison actually receive the RTS notice in order to start the running of the limitations period under 42 U.S.C. § 2000e-5(f)(1). Floyd, 2003 WL 247105; Brown, 1999 WL 801591, at **2. The Sixth Circuit has adopted a simple, straightforward rule. When a Title VII plaintiff does not notify the EEOC of an address change, the § 2000e-5(f)(1) ninety-day period begins to run five days after the EEOC mails the RTS notice to the plaintiff's address of record, even if the plaintiff never actually receives the RTS notice and it is returned to the EEOC by the United States Postal Service as being undeliverable. Hopkins, 2000 WL 923458, at **2; Brown, 1999 WL 801591, at **2; Johnson-Brown v. Wayne State University, 173 F.3d 855 (Table, text at 1999 WL 191322, **1 (6th Cir. March 17, 1999); Banks v. Rockwell Int'l N. Am. Aircraft Operations, 855 F.2d 324, 326-27 (6th Cir. 1988); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 474-75 (6th Cir. 1986).
As long as the RTS notice is correctly mailed by the EEOC to Pearison's address of record, this is sufficient to constitute notice to him. Pearison is deemed to have constructively received the RTS notice five days after the date it is mailed by the EEOC to his last known address of record. The EEOC's direction of the RTS letter to Pearison's former address was caused by the failure of Pearison to properly notify the EEOC of his correct mailing address. This did not stop the running of the ninety-day time limit provided in 42 U.S.C. § 2000e-5(f)(1). Banks, 855 F.2d at 326-27; Hunter, 790 F.2d at 474-75; see also Graham-Humphreys, 209 F.3d at 558.
Pearison bears the burden of notifying the EEOC of his change of address. This burden is minimal and reasonable. Pearison had an affirmative duty to promptly notify the EEOC of any change in his mailing address to ensure that the RTS notice would be mailed by the EEOC to his correct address. Johnson-Brown, 1999 WL 191322, at **2; Ball v. Abbott Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988); Banks, 855 F.2d at 327; Hunter, 790 F.2d at 475-75; St. Louis v. Alverno College, 744 F.2d 1314 (7th Cir. 1984); Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir. 1982); 29 C.F.R. § 1601.7(b).
The Title VII claim must be dismissed as time-barred even though Pearison notified the THRC of his change of address in January 2000. With regard to the Title VII claim, it is irrelevant whether Pearison notified the THRC of his change of address. Notice of a change of address to the THRC is not sufficient to give proper notice to the EEOC. The THRC is an agency of the State of Tennessee and the EEOC is a separate agency of the United States government. It is unreasonable to expect the EEOC to check the files of state administrative agencies in every case to ascertain whether the EEOC has the complainant's most current, correct mailing address. Pearison is in a far better position to ensure that the EEOC has accurate information about his current mailing address and he can furnish such information to the EEOC in far less time than it would take for the EEOC to comb through the files of the THRC. Ball, 864 F.2d at 421; Alverno College, 744 F.2d at 1316-17. The doctrine of equitable tolling is not applicable under these circumstances. The federal courts sparingly allow equitable tolling. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990); Graham-Humphreys, 209 F.3d at 560. Typically, equitable tolling is available only when a litigant's failure to meet a legally-mandated deadline, such as statute of limitations, unavoidably arose from circumstances beyond that litigant's control. Id. at 560-61. The Sixth Circuit has said that absent compelling equitable circumstances, a court should not extend a statute of limitations by even a single day. Id. at 561; Johnson v. United States Postal Service, 863 F.2d 48 (Table, text at 1988 WL 122962, at *3 (6th Cir. Nov. 16, 1988).
Generally, there are five factors to consider when determining whether to it is appropriate to equitably toll a statute of limitations: (1) the plaintiff's lack of notice of the filing requirement; (2) the plaintiff's lack of constructive knowledge of the filing requirement; (3) the plaintiff's diligence in pursuing his rights; (4) absence of prejudice to the defendant; and (5) the plaintiff's reasonableness in remaining ignorant of the particular legal requirement. Graham-Humphreys, 209 F.3d at 561; Truitt, 148 F.3d at 648; Andrews v. Orr, 851 F.2d 146, 151 (6th. Cir. 1988). This list of factors is not comprehensive, and all five factors may not be material in all cases. The propriety of equitable tolling is determined on a case-by-case basis. Graham-Humphreys, 209 F.3d at 561; Truitt, 148 F.3d at 648.
The Court concludes that Pearison is not entitled to equitable tolling of the ninety-day time period because the reason he did not actually receive the RTS notice by mail was due to his own neglect and lack of diligence in failing to provide the change of address to the EEOC. Banks, 855 F.2d at 326-27; Hunter, 790 F.2d at 475. Pearison did not act in a diligent, reasonable manner to notify the EEOC of his change of address. Pearison's neglect and lack of diligence cannot be excused by equitable tolling. King v. Henderson, 230 F.3d 1358 (Table, text in 2000 WL 1478360, ** 5-7 (6th Cir. Sept. 27, 2000)); Graham-Humphreys, 209 F.3d at 561; Johnson v. United States Postal Service, 64 F.3d 233, 238 (6th Cir. 1995). Moreover, Pearison had constructive notice of the RTS letter when the EEOC mailed it to his address of record. In sum, Pearison has not met his burden of showing that equitable tolling is appropriate in this case.
Accordingly, the Title VII will be DISMISSED on summary judgment pursuant to FED. R. CIV. P. 56.
A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the motion by plaintiff Sammy R. Pearison for a show cause hearing [Court File No. 32], which is treated as a motion to compel discovery under FED. R. CIV. P. 37(a)(2)(B), is DENIED. The request by defendant Pinkerton's Inc. to convert its motion to dismiss [Court File No. 28] into a motion for summary judgment is GRANTED. The motion by Pinkerton's, Inc. for summary judgment is GRANTED pursuant to FED. R. CIV. P. 56. The race discrimination in employment claims brought by plaintiff Sammy R. Pearison against defendant Pinkerton's, Inc. under Title VII of the Civil Rights Act of 1964 and the Tennessee Human Rights Act are DISMISSED WITH PREJUDICE. All claims having been adjudicated, the Clerk of Court shall close the record in this case. This is a FINAL JUDGMENT.
SO ORDERED.